Trump vs. the Pope

For the first time in our lifetimes, we see [music] a pope and a president openly clashing not over abortion, not over gay marriage, but over the killing people in large numbers >> [music] >> is bad. Being mad that a pope won't endorse your war is like being mad that your doctor won't endorse your cocaine habit. Every authoritarian [music] movement of the 20th century wrapped themselves in God and the flag. Hitler did this, too. Are we at the point where we have to start talking about the 25th [music] Amendment? This is why the 25th Amendment was written. Welcome to another episode of The Oath in the Office. I'm John Fugelsang. Welcome to the show. We have quite an episode today. The Trump regime is losing in Hungary, in courtrooms, and in the Vatican. For the first time in our lifetimes, we see a pope and a president openly clashing not over abortion, not over gay marriage, but over the radical, controversial, leftist idea that killing people in large numbers is bad. For more, let's go to the star of our show, the author of The Oath in the Office and the Presidents and the People

Constitutional Law Professor Corey Brettschneider. Corey, it is so good to see you. Welcome back. What a pleasure, John. And you know, some of the best news we'll talk about in the second half of the show, which is that in a regime that looked like it was destroyed, democracy had disappeared, it's come back. And you know, that election is going to give us hope in our own situation where we're facing a threat to democracy. And of course, this battle that's brewing between the pope and the president something that really seems like a kind of bad novel or something. This is raw reality. And we'll see. We'll try to use it to think about what it can teach us about the role of religion, the idea of neutrality in religion and politics. And it's a it's a teaching moment, as they say. Teachable moment. Yeah, there's a lot I want to get to on that. And let's get some announcements out of the way.

First off, please subscribe, everyone. Please like us and subscribe. And also, over on the John Fugelsang podcast, really quick, we had a very special guest, as Mr. Martin Sheen, who has joined us on stage for Sexy Liberal shows in the past. But he he read my book, Separation of Church and Hate, and I was trying to get him on my show for a long time. I'm in LA last week, Corey, and I was talking to you the day this happened. And I said to Mr. Sheen, "Okay, well, listen, we can we can do it on Zoom. I'm happy to book you in a gorgeous space in the Hollywood studios. They're very lovely. Or I can come to you." And he wanted to come to to to my place. And so, I had him and his daughter drive over, and we sat around the kitchen table and talked for over an hour. And he discusses everything, activism and acting and craft. He talks about everything from working with Arthur Miller to Dorothy Day to activism. And it's a a really, really special conversation. And it's the first time I've ever done an interview with anybody around my kitchen table who's also a former American

president. So, it was pretty exciting. >> had to say. Yeah, that the transition there is seamless because our show, of course, The Oath in the Office so deeply related to President Bartlett. And during the Bush administration, I often imagined that this really was the president. I had an amazing moment in law school that relates to him, which is that my theory professor and and mentor, who we'll have on this show, Larry Lessig, and I were talking in his class, and I said I have to leave this conversation cuz I never miss The West Wing, and I ran home to watch The West Wing as I always did. And the episode begins with Christopher Lloyd saying, "Hello, I'm Larry Lessig, here to see President Bartlett." And it was an episode Anyway, this is in which your interviewee, President Bartlett, interviewed my, you know, the the fake version of my law professor played by the Back to the Future star.

>> [laughter] >> Well, it was really awkward for me because I've never heard of The West Wing. I just wanted to talk about him playing the evil president in The Dead Zone, or Greg Stillson. So, it was really not the kind of interview he was ready for. >> So, he wasn't he wasn't even that was his best role? Well, I'm I'm glad you're here, Professor, because you know, I'm always happy to talk tabernacles and and even though we do a podcast about the Constitution, boy, oh boy, the founders knew that there were problems when you try to merge church and state. And the pope is a guy who follows Jesus, who famously had a bit of a problem with emperors commanding loyalty. So, you know, we just had a very strange Easter week. We talked about it last week. Trump celebrated Easter by having a posting about violence and mass slaughter. I thought Easter was about a guy coming back from the dead, not sending lots of people to it.

But Pope Leo steps up to the mic, and we've talked about this. He gives this this greatest hits compilation of Jesus' teachings. Blessed are the peacemakers. Love your enemies. Put away your sword, for those who live by the sword will die by the sword, right? Like basic stuff. Christianity 101. Killing civilians is wrong. Peace requires dialogue, not bombs. Right? This is very basic. It's like it's like wash your hands. Don't eat the silica gel. And the president, as you know, Professor, went after him, called the pontiff weak on crime, which is great when it's a 34-time convicted felon.

And he called him a failure because the pope was quoting Jesus to oppose this war. He called him a liberal. Nothing screams radical left bomb children. And Corey, my whole thing is being mad that a pope won't endorse your war is like being mad that your doctor won't endorse your cocaine habit. But then Trump posts this AI photo of himself as Jesus at what appears to be a a NASCAR resurrection halftime show. It looks like Buster. With light coming out of his hands in a white tunic and a red sash healing >> doctor that looked a lot like Jesus.

Yeah, dressed just like Jesus. And apparently, he's healing one of the Oak Ridge boys. I don't know who that guy was in the in the bed. It looked like a can of Monster Energy drink getting baptized is what the whole thing looked like. But Corey, you have written so extensively about protecting democracy against authoritarianism. And it's what we talk about all the time. So, what happens when power starts trying to discipline or dictate to or intimidate moral voices like this pope? Yeah, I think that, you know, one of the founding ideas, of course, expressed in the free exercise clause guaranteeing free exercise of religion, and also barring the state takeover of religion.

And the worry was that if you get the state involved in religion, it's going to manipulate it for its own purposes. And so, our Constitution doesn't just ban an established church. It bans any law or or really, arguably, even any expression by the government that suggests that there is one true or false religion. And those ideas, I think you start to see why you want them because you have a president here really trying to commandeer and back down and and essentially threaten the pope by engaging in this harsh rhetoric. The fact that he responded, I have to say, from the beginning by saying, "I'm not afraid." What a moment. You know, it really sends the message that yes, this president of the United States is trying to uh to to impose his will on the leader of the Catholic Church. And the the elegance of that way of putting it, Pope Leo is, you know, winning over a lot of fans, including those who

aren't adherents, simply by standing up for the truth. You know, I think in the Trump universe, the Catholic Church, religion generally, is supposed to just be apolitical, not have any comments, nothing to say. And what does that do? It requires an abandonment of any serious principles. Part of religion is about a theology of the existence of God, but it also is about ethics, about human relationships. And to for a religion to abandon its ethics is is is, you know, asking it to abandon itself. Oh, so true. And you know, what's happening here is that the pope is standing up for the principles of the Catholic Church as he understands them, as he's obligated to do. And the president doesn't like it because yes, it ethics conflicts with the policies of this president, of this government. And that's inevitable. There's no such thing as a truly neutral ethics. Correct. So, he is an ethics. Correct. It was amazing hearing J.D. Vance essentially tell the pope to stay in your lane. You know, never mind

the fact that the president's a reality show character, but the pope he said pope should stick to matters of morality. And it's like, well, uh slaughtering civilians in large numbers, I think is covered under matters of morality. Furthermore, Professor, these folks were never saying church should stay out of government when they were trying to distort the Bible to say that Jesus opposes abortion and to take rights away from people. They piled on for that. And look, historically, popes have made a lot of mistakes. Popes have done a lot of evil things, but not being pro-war enough is not one of the things people usually complain about. Corey, is there even such a thing as neutrality when the core teachings of a religion, like opposition to war are directly contradicted by state policy?

No, how could a religion be neutral? The whole idea of religion and of any ethics is that it has a set of values that it's pronouncing. Now, you know, it's one thing to be partisan and for a religion to say, you know, this candidate should be excommunicated or this can you know, we can argue about that. And churches are supposed to be nonpartisan. There's actually a legal requirement that they not endorse candidates from the pulpit or oppose them. That's in in in the law that creates nonprofit status, and it comes from the Johnson era in which a decision was made that we don't want churches either engaging directly in politics or being commandeered by politicians. But that's not what's going on here. What's going on is that the pope made a pronouncement about an ethical commitment that that the president didn't like, and that was in conflict with the president's uh behavior, including his his uh our illegally initiated war. And uh you know, that that shows that the myth of neutrality can't can't be right, that

religion stands for something. The danger is of also, and I don't want to miss this point, a president um you know, claiming that he wants neutrality, that's not really what's going on. He wants control, and so it's only neutrality that he's going to talk about when it's uh beliefs that are opposed to him, but when it's when he can control it, when he can use it for its own message, uh he's perfectly okay with it. I mean, it's amazing how much this this conflict uh illustrates what the framers were worried about, a government commandeering religion. I have to say one personal note, which I've mentioned before on the show, but I'll mention it again, which is that um my wife's um uh grandfather, Allan Graves, was a Christian ethicist, wrote several books about uh Christian ethics, and was a professor at the Louisville Seminary, and a close associate of Martin Luther King Jr. And when we think about the Civil Rights Movement, you can see the points that I'm trying to make. Imagine, and people did say to King, "Why are you involved in politics? It's not your place." And of course, if you're truly

an believer in in ethics, in an ethical philosophy, you not only find yourself in conflict with some political positions, you can't help but speak out and condemn what is immoral. And that's the point of it. I mean, since Rome co-opted Christianity and had their hostile takeover 1,700 years ago, this has been the pattern. When you want to have state violence, you need to bring in some guy in a with a funny hat and a dress, some some clergy, to sanctify state violence. And for 1,700 years, you know, look look at Paula White Cane.

It's not hard to find some religious figure willing to throw Jesus under the bus in exchange for proximity to power. The whole use of Messianic imagery to sanctify political power and violence isn't new. Every authoritarian movement of the 20th century wrapped themselves in God and the flag. Hitler did this, too. And this is how authoritarians, and we've talked about this, how they signal to their followers that their authority and their violence isn't just political, it's divine. Right? So so when a president is framing criticism from a religious leader as political, that's really a way of delegitimizing any kind of moral criticisms of what he's doing. Have they Have we seen moments, Corey, where religious institutions had no choice but to confront political power? I mean, it does happen, you know?

This is like This is like what Hitler said to Bonhoeffer when he used the Bible to oppose what the Nazis were doing. Yeah, I mean, I mentioned King already, and that is an incredible moment. And you know, he had to find a vocabulary to learn how to do it. I talk about this in The Presidents and the People, that he begins with really straight uh uh natural law philosophy, the idea of Aquinas, that an unjust law is not a law at all, and reaching to the idea of the divine law giving birth to um the law of nature, which then has an impact on how we should think about society.

One of the stories that I tell is that um there's a student, actually, who hears him in a debate making these arguments, and says, "You know, this is going to grab some people, but not all people, and you have to find a way to combine your Christianity with a common vocabulary." And so, King transforms his ideas from solely Christian theology to combining it with the Constitution. That's really interesting, you know, to think about the Constitution as an independent document, and then uh Christian ethics that supports it. But you have to be careful in how you do it.

Uh there's a movement now, which we've talked about, too, sometimes called post-liberalism, um uh that tries to really read the Constitution as a Christian document. And King is always careful to not do that as solely or exclusively Christian uh document. The other point in history that should worry us and concern us about uh religion being co-opted by the state is in some forms of fascism. I mean, Franco's Spain, for instance, famously used images of um of of Catholicism, of Christian imagery, in order to co-opt uh to undermine democracy. So, you know, we have to be really careful when politicians uh either try to co-opt religion, including Christianity Christianity, uh and also when they claim somehow it can't religious people can't have their own independent voices or religious leaders, and and demand neutrality. It's always in the service of their own power. And you know, that's what we're learning from this, as I call it, teachable moment. And and again, I wrote a whole book about this. There's

two streams of Christianity that have gone on for 1,700 years. >> Yeah, I have happy John. I mean, uh you're working on a new book. Can you give us a preview of how all that relates, or would you rather not say exactly about this? It's about It's about Christianity and power. And it's about fake Christians. But I that's not a label I throw around casually at ordinary people. Who am I, right? Like I'm in Coyote Ugly. I don't get to judge anyway. But but I do use the label for those in power, because you'll see a pattern throughout history that you got to spot, which is these people who use Jesus to get power, and then once they have power, they do the opposite of everything Jesus says, and then you see a a Christ-following resistance, like Dr. King, like the Quakers, rise in opposition. That's normally through history how you can tell when any kind of authoritarian is co-opting religion. You'll see the Dr. Kings will stand up and quote Jesus, and they usually get called communist for it, which we've seen happen to James Talarico and Reverend Warnock in recent weeks. You know, it's like these

Christians, they hate hearing from Jesus. But when a when a political leader publicly attacks a religious figure, like like Pope Leo, for for preaching peace, does that force religious institutions out of neutrality, whether they like it or not? Yeah, I mean, it's a self-defense. You you know, Leo didn't ask for this fight. In fact, he's I think been very careful to try to message in a way that's really I guess I'm a slap, yeah. And then, you know, here comes Trump attacking him. And what are you going to do? You have to defend your own view, especially if it's being mischaracterized, as is happening here, or slammed, or denigrated. You know, at some point, self-defense of your own beliefs is is necessary. And of course, Trump is getting dirty in all of this, claiming, "Well, the Pope's brother is a Trumper," which uh you know, has some truth to it.

But you know, why are you doing that? Why are you wanting to call Nancy Pelosi the C-word? That's who Donald Trump finds more simpatico. Yeah, so that's his that's his uh religious hero, the Pope's brother, who happens to be a fan, rather than the Pope himself. And uh you know, all of that is an attempt to denigrate uh you know, Donald Trump has an office that he's denigrated, and he's certainly denigrating the office uh that the Pope holds, as well. Yeah, well, I guess that's why Trump decided to Photoshop himself into divinity, because this ridiculous AI image that he put out. I mean, you got Leo saying, "Hey, don't worship power and money and violence." And Trump responds with, "Oh, good. Here's a picture of me as God."

Yeah, right. All these idols are all That is Trump's main main main gig. Well, this is what This is what made a lot of people flip out over this over the weekend. Not not the Trump's blasphemy, we're used to that verbally. Um the guy had cops beaten on the Capitol steps for a lie. But this whole sequence of him saying first, "The Pope is bad for President War," and then also, "I'm Jesus now." This got a lot of people saying, "Oh, are we at the point where we have to start talking about the 25th Amendment?" And I want to ask you about that today, Professor, because uh we should be getting very used to people talking about the 25th Amendment quite a bit.

Something that has been discussed before, never been deployed before. Let me Let me start with the basics on this one, Corey. Um with the caveat that I don't think this is going to be used against Donald Trump. I think he could smear feces on a podium, and they wouldn't do it. But what exactly is the 25th Amendment to the Constitution designed to do? Uh it's designed, well, for a moment like this, where the president is the the word the crucial word in the 25th Amendment is unable. And an instance in which the president is physically unable to govern, comma, for instance, to deal with the situation like that. Um we've talked about the serious ailments that we now know Woodrow Wilson had at the end of his life. That sort of thing is on the mind. Um it's um crafted in the 1960s by um among other people, the former dean of Fordham Law School, somebody I know well, John Feerick, is one of the, you know, true founders of it.

And he's confirmed to me something that looks to me plain from the text, but you also get a sense of So, you know, I can't ask Madison what he thought, but I can ask the founder of the the crafter of the 25th Amendment, that it was clearly meant to for um mentally unstable cases of dementia, um psychological being psychologically unable to govern. And that's what we're seeing in all of these tweets, the depictions of Jesus, the manic Truth Social, um I guess Truth Social posts uh that that are being, you know, in the middle of the night showing up. These are things that really make us worried that this president is unable, in a psychological sense, to govern. Now, here's the problem, with all due respect to the crafters of this amendment, including John Feerick, I think that what they imagined was that in these serious moments, that people would put partisanship aside, and even members of the cabinet would realize we've got to remove this person. We've got to stop him. And they put that as one safeguard. I think their thought was

they're not going to do it for political reasons, cuz they're co-partisans, but they'll rise above partisanship. So, Section 4 requires the vice president and majority of the cabinet to push the president out temporarily and then they're only a few days until Congress has to affirm the decision and you need 2/3 of both the House and the Senate. Just to compare it to impeachment to see why this is not workable. What you need for impeachment is 50% of the House and 2/3 of the Senate. So, this is actually a more difficult much more a tighter legal threshold for >> others. There's a lot of character is Well, that let me ask about that cuz there's a lot of public confusion about this and I want to >> Yeah. People often think it's a tool to remove a president for being unfit. But that's not what it's about. It's for being unable. Correct. Even Woodrow Wilson with his wife answering the bedroom door saying, "Oh, he says this.

He says this." While Wilson had a stroke and couldn't talk. I mean, that didn't reach the the the level. Um Well, I think it would have. I mean, you know, it's passed much later. We didn't have it, but yeah, I think that is the kind of thing that they're thinking about. You know, that he was he was physically unable to do the job. And so, I think in the minds of later on of the drafters of the amendment, that's the kind of thing that they were thinking about. But they also were thinking about psychological illnesses, you know, or or dementia for instance that that made the president psychologically unable. And so, I think there too, you know, there's a parallel.

And that word unable occurs >> the cabinet has to initiate it, right? I mean, And the vice president. So, we're talking about J.D. Vance and now you know, if we want to really get into >> Oh, that would be like accusing him of being ambitious and having no core values. Hey, J.D. >> would have his moment, but you know, the idea that who who is going to vote for this, you know, Hegseth? The World Wrestling cabinet member of the education secretary? You know, I just don't I don't see it happening and I always was naive about the moment.

They're all selfish narcissists like Trump. So, they would all do it once it became in their interest. I mean, Trump got rid of Pam Bondi and Kristi Noem once getting rid of them was in his interest. There is no loyalty here. There's only obedience. And and we've never come close to using this in in in modern history. I mean, if it seems like Americans are overestimating what the Constitution can do on its own without >> Yeah, that's right. I mean, we do have impeachment which has never worked and that's an easier threshold. So, you know, the idea that this is going to work. But we also I think can talk about recrafting it seeing that it really is an important thing that we should have even though we don't have it. That's one useful reason to talk about it. I'm many Well, that's about like a more flexible use for the 25th Amendment? Well, I think a a lower threshold might be part of it. You know, that I don't know how I would design it, but certainly not a majority necessarily just a I wouldn't go to the cabinet. I would probably have a Well, I'll outline one feature that they did think about

that hasn't been used which is that the amendment creates a new power of Congress which is to create a board. Now, who would be on this board we you know, leaves unspecified, but I imagine for instance it could be psychologists who would look at the president. And again, the amendment creates a power of Congress to do this. They would look at the president's health, mental health or physical health and then they can make a recommendation in the event that this legislation was passed and created to Congress which then would make a decision. I think that is something short of an amendment that that we could do in the next Congress assuming there's a Democratic majority is create this board of professionals.

And you know, the thought is that maybe Congress would would listen. I the fact that you need 2/3 of both houses >> Republicans would have done it during Joe Biden's term, Corey. I don't see them ever doing it again. Well, one problem I mean, this is an interesting question, John, in constitutional design because there always is this danger of overreach and of politicization. And that's what they were worried about in the 25th Amendment. It's why it's so hard to remove a president. They're worried about that kind of situation in which it's it's partisan rather than based on health. But I guess my view is, you know, what we've seen with this Trump presidency is that the danger of a mentally unstable to say the least president who is aggressive, controlling the commander-in-chief power, nuclear weapons is so dangerous that I'd rather risk that it would be overused rather than underused. And if you look at the fact that as you said and pointed out, it's never been used.

And the fact that impeachment actually has never been fully used. We've had majority impeachments in the House, but never 2/3 in the Senate. I think we've got to make it easier in some way to remove a president. And so, this is one one serious possibility. >> Well, as I learned from you, impeachment is there because they wanted an alternative to assassinating a president. So, I think yeah, but I I'd like to have more options, please. All right, more options, please. We got to take a break. When we come back, Viktor Orbán's defeat and what it means for democracy around the world and here too.

This is The Oath and the Office. Welcome back to The Oath and the Office. I'm John Fugelsang along with Professor Corey Brettschneider. Corey, there are few things more satisfying than watching an autocrat who spent 16 years rigging the game lose the game anyway. But that's what just happened to Viktor Orbán, Europe's longest-running audition for elected dictator. Um now leaving after Hungarian voters finally said, "We've seen enough. Thank you." The quite conservative Péter Márki-Zay buried the 16-year regime in a landslide. And and as we've discussed in the past, Professor, Orbán was really a case study in 21st century illiberal regimes. He wasn't just a leader. He he was the system. Tell me if this sounds familiar.

For over a decade, his party pulled a complete takeover. They purged the judiciary. They built an obedient media. Rewrote the laws to get rid of guardrails. And they pushed an overtly racist anti-woke crusade. And elections, they were more curated. Does it sound familiar? What stands out to you the most? >> Like I'm living through that. So, what stands out the most to you, Professor, about what just happened in Hungary? Look, the first thing is to say that there's a lot of hope that there's so much despair. You know, I think that one of the We have to be honest about what's happening, but of course, one of the entire points of doing this podcast is to give people hope that as our Constitution is threatened that we can recover. And so, that's what this does.

It's it's an example arguably that's worse than what we're living through right now in that you really did have a dictator. You had legislation, not just executive action, but legislation really viciously discriminating against gay people, against transgender people. And yet it despite what was arguably a collapse of democracy into dictator the people rose up and they pushed back. Now, this isn't a a progressive leader. It's a conservative, but it is a rejection without question of authoritarianism, of Putinism. And hopefully of this vicious anti-civil rights agenda.

A lot of it couched in terms of religion, I should say that a lot of the Christian theocrats in the United States were advising J.D. Vance have been over there advising Orbán. And that is his philosophy. And in fact, of course, J.D. Vance himself has been over there campaigning for Orbán. And and you know, so so there are close parallels. And yet we came back. One other big point which really should give us hope is some of the worst gerrymandering that you can imagine happened in Hungary. And as bad as the gerrymandering is here, they still overcame it with a landslide.

Orbán's party, you know, has really, you know, has outvoted almost two to one in this election. So, about two to one, I should say. And yet, you know, the gerrymandering didn't work. And that's true here, too. They can try to rig the election. They can try to intimidate voters. But if we come out in force against this authoritarian moment, democracy can prevail. And this is a shining example of it. You're right. I mean, the voters were still able to remove him after all of this rigging and and after the whole authoritarian cinematic universe showing up for this guy. I mean, Putin and Trump and Marco Rubio goes over there and J.D. Vance goes over there. And yet these heavily tilted systems can still be overthrown through democracy.

Is this a Do you view this as kind of a weakening of the unitary executive theory's power right now because I think Orbán was kind of a template, you know? This model we've talked about for a certain kind of a leader. You win elections. You you undermine the institutions. You rewrite the rules to rig the system. You call it democracy. And for years, that model worked until it didn't because I think there's a fatal flaw, Corey, in every strongman regime. At some point, you run out of people to blame. And Orbán blamed immigrants and liberals and journalists and academics and gay people. Always another villain. Until one day, you know, the only thing left between the voters and reality is you, dictator. How important was civil society, protests, and organizing, and independent media in making this outcome possible? You know, it it is what did it. Um and you know, when we see the no kings rally and we see people in the streets that is part of setting setting the moment. I mean, let's not underplay the way he responded because

he realized that he wasn't going to through a normal democratic process remain in power. And so, like Trump, he tried to cheat. And that gerrymandering was a way of trying to undermine the the normal vote of the will of the people. And yet what's what's ins- This is a truly inspiring thing is despite all of the cheating, it didn't work. That the force of resistance was so strong that it wasn't just a normal democratic will. It was a reaction really of almost the entire society rejecting that cheating, rejecting that authoritarianism.

Uh and that's what I hope that we see here, too. Um you know, the unitary executive theory, although as much as I disagree with it, it was never designed for dictatorship, but it might lead to dictatorship. It might lead to a president who tries to nationalize elections in order to treat cheat. But how can we overwhelm that? Maybe even in Texas, you mentioned um hopefully future Senator Tara Liko, uh through uh you know, speaking the truth, and through galvanizing support, and even in the face of gerrymandering, um you know, the the Senate election will be the entire state, but even in the Texas Senate elections, even though they've tried to gerrymander, you know, save about five seats, um you know, if we can can overwhelm them >> [laughter] >> with force, uh those seats might actually not all go in the direction that they were designed to go in. I think one of the takeaways that's kind of a hard pill to swallow for um for folks on the left is that this was done because they knocked out a right-winger with a conservative.

You know, there's this impression to think that Magyar is somehow this this liberal reformer. He is not in any way. He'd be considered quite conservative in our country right now. And it took all the liberals and progressives in Hungary to hold their nose and vote for the lesser of two evils. And I know that this is it's tantamount to a sin, voting for the lesser of two evils. I get it, believe me. I voted third party several times, but to me, the greater evil is not voting. That's that's the greater of all evils. And and sometimes the only thing that works in a democracy is voting for the least harmful candidate and then beating them up every day. I mean, for all its flaws, Corey, democracy seems to have one really inconvenient deep feature for authoritarians.

It allows people to change their minds. Do you Do you see this having a ripple effect around the world, including here? You know, just to get into the Hungary case a little more, yes, the newly elected uh leader was a ally of Orbán who then turned on him. And of course, the worry is that even though we've gotten rid of Orbán, we haven't gotten rid of uh authoritarianism. And the trick here, I think, is that the constituency that brought him to power uh has to continue to speak out against authoritarianism.

Uh some of the chanting that I heard in media reports um that were showing uh was yelling uh you know, Russia out, Putin out. And uh you know, that that's got to be That's the reason he was elected. And so, that's not the end of the story. And and that's true here, too. I mean, as you know, I think that we need to have a movement. We have a movement, the No Kings movement, in favor of restoration of our Constitution. And whoever the next president is, progressive or moderate, um Republican or Democrat, that that that movement has to demand from them an end to the Trumpian authoritarianism uh that we're seeing. Uh that won't come from Trump. It won't come from J.D.

Vance. We need to replace them. Uh but but uh you know, that's what we've got to demand. My hope, I don't know how hopeful it is, but you know, one real question with the given the last discussion that we had, the weakening of J.D. Vance, is that Republican primary might be more open than we realize. And the heart that there'll be some sensible moderate candidate of this kind that might emerge. That can only be good for democracy. And uh not likely You know what's going to happen is J.D. Vance is going to try to run as the guy who was really against the Iran war all the just didn't do anything about it.

And Tucker Carlson is running for president as the douchebag conservative who was always against the Iran war. I mean, it's the ads are already are already written and I'm already nauseous just saying that out loud. Let me bring it back here to some interesting news because you remember a few months ago when Rupert Murdoch um in his Wall Street Journal uh posted that birthday card that Donald Trump made for Jeffrey Epstein's 50th birthday in 2003. Um because Murdoch will push the propaganda about Trump being great on his TV channel and he'll tell the truth about what Trump is to his peers in the Wall Street Journal. So, um Trump sued him for $10 billion, the man who probably did more to help him become president than any other uh person next to Putin. Um so, this week, US District Judge Darrin Gales, a Barack Obama appointee, dismissed Trump's $10 billion defamation lawsuit against the Wall Street Journal. It's not often I find myself rooting for Rupert Murdoch in any kind of conflict, but uh Professor Gales said Trump came

nowhere close to proving the journal had actual malice when publishing this story about the tacky birthday card. This is the one with the nude woman and and Trump and Trump wrote that he and Epstein share a wonderful secret. So, I want to ask you about that, how how Trump came nowhere close to proving actual malice. What does that standard actually require in in plain English? Well, there's thankfully a case, a Supreme Court case, that extends the First Amendment to worry about cases like this, where powerful people are going to try to use lawsuits in order to basically sue people into silence and to have a chilling effect of scaring them from even speaking out in the first place. And uh I mentioned Martin Luther King Jr.

before. This is related uh related case. It's about civil rights organization connected to King

had a newspaper ad that condemned a Southern police chief. Uh and there were some mistakes in the ad, um unintentional, but they were there. Uh and under the normal law of libel, saying a falsehood about somebody could get you sued. But what the Supreme Court sensibly said is when public figures are involved and when it's an issue of public concern, and uh that certainly was an issue of public concern, um we have to be more careful and more protective of the right of people even to make unintentional mistakes. So, the way that they create the law is you can still be sued if you're really intentionally lying about somebody, intentionally trying to be malicious uh against them. So, now to go to this moment, the Wall Street Journal publishes this um you know, publishes this uh information about Trump and Epstein. And the thankfully, what the court says is there's no case here because, you know, even if there were, you know, we could look into whether there were some mistakes here, and that's what Trump is

claiming. But even if they're mistakes, it's not malicious. They believe that this is true information. And so, the law is functioning as it should. One last caveat, uh it's a great outcome. This is a lower court. The Supreme Court has flirted with the idea that maybe Trump is right after all in thinking, as he said from the beginning, that the libel laws ought to be changed. In fact, uh that's what he said from the beginning, that that and has considered that maybe the this case and the ideas that I talked about of requiring actual malice um uh allowing for a vast amount of free speech to be free from lawsuits, maybe it's all wrong. And the Supreme Court is flirting with that right now. I kind of love that he attacked the Pope for using Jesus' words against him and then attacked Rupert Murdoch for using his own words against him. And I I get it.

This is a $10 billion I mean, that was that wasn't a legal strategy. It was all political messaging. But does this ruling reinforce the First Amendment protections for the press even when the reporting is controversial or embarrassing? It's an important moment. It's uh draws on this case um from decades ago that's still with us for now, thankfully. And it shows how important it is that we have a First Amendment. We've had periods in our history. Uh one thing that New York Times versus Sullivan clearly is is a rebuke against John Adams and the Sedition Act when the opposition party was shut down. Yeah.

And uh here, you know, the court this lower court, anyway, is saying, uh no, the president can't use his threat of lawsuits in order to silence people. And thank God for that because that's what we need in a moment in which we have an authoritarian president. Our voice is to criticize him free from both fear of imprisonment, um you know, which he's trying to shut down in his attempted prosecutions of political opponents like Letitia James and James Comey, but also in we shouldn't have to fear that we're going to lose our income or lose our our our our our our money become bankrupt because we engage in free speech. And and that's why this is so important right now. That First Amendment turns out to be a crucial part of democracy.

Can I just ask a dumb layperson question? What does it mean that the judge dismissed the case now before it even went to trial? There's no realistic path for an appeal, right? It means that you know, and judges will do this when when, you know, the point of a trial is to find out facts and to see how those facts might influence a decision. So, what she's really what the judge is really saying is terminating settlements with different school districts, essentially requiring school officials to either comply with federal anti-discrimination laws or conflicting state laws. And this is all in line with Trump's executive order that the government only recognizes sex assigned at birth as a person's official gender, because these people believe in one thing, and it's punching down on minorities weaker than them. Now, the education department says there's no precedent for terminating civil rights settlements like this. How how extraordinary how extraordinary is this move legally? I think it is deeply unprecedented, deeply problematic, John,

because uh look, the executive order, I think is unjust, and uh we could talk about ways in which it's deeply misguided, but usually executive orders are meant to look forward. What this policy does Yeah. is it interprets the executive order to rewrite the past and to go and undo past settlements uh against those who violated civil rights. And uh that's what's so unusual about it. One of the, you know, problems with retroactive decision-making is people have relied on those decisions. They've come to accept them. And going forward, okay, we can argue about that, but there's a particular kind of injustice besides the abandonment of civil rights that's part of the executive order. That's why, you know, it's uh problematic here.

>> Can a new administration just undo prior civil rights agreements? I mean, there there's legal limits to that kind of power, right? He had to stack the courts before he could take rights away in the case of Roe v. Wade. Uh I hope there'll be a lawsuit about this. We'll see. It's, you know, it's just a an executive action at this point trying to undo these settlements. I There'll be litigation, I imagine. Um but, you know, I should say too, regardless of whether that succeeds, the idea of the rule of law is that we don't change things after the fact. And that's what's going on here, this retroactivity. Of rewriting the past is, you know, uh uh fundamentally unfair, and it is certainly against the spirit of the law, and it's consistent with what this administration is all about. I have to say too, it shows you uh one of the things we talked so much about is the danger of executive power. And here we have the executive really abusing its power, you know, circumventing the courts. It's not doing this through courts, just undoing what past presidents did. And uh you know, that that is an abuse of that power, but it

also shows how massive it is. But I mean, what are the constitutional implications if schools are effectively forced to choose between getting our federal funding and complying with their own state's anti-discrimination laws? I mean, this is bullying schools into bullying the most bullied of all children. Yeah, and I should say too, I mean, to abstract out that this administration's attack on transgender rights goes beyond what so many conservatives believe. I mean, there's an amazing case called Bostock, which is about a different issue, but a related one. Does the 1964 uh Civil Rights Act um ban on discrimination in employment uh apply to gay and transgender people? And, you know, conservatives like Alito said, you know, discriminating against a woman is one thing, but that doesn't include discrimination against discrimination based on sex doesn't include transgender people. Uh but yet the majority, led by Justice Gorsuch, said, "You know what?

Sex discrimination and transgender discrimination are the same thing." Right? And here you see, you know, the obvious title line now, right? Your title line is going to be the basis of the lawsuits then. I mean, Yeah. you know, the prohibition on sex discrimination, that's that's going to be what the appeals are about, no? Yeah, there I guess there the administration's view is the opposite of what I just said. Um you know, that somehow protecting transgender people is sex discrimination. I don't even understand it, you know, but they're always reversing and making up down and down up. Think of what they do in civil rights. They took a law that was meant to be uh about racial subordination of black Americans throughout history and the corrective to it and made it a white rights bill. And uh you know, look at the policies of the Department of Justice. So, that's their their game.

You know, that they they they they flip on its head what civil rights protections are supposed to be. So, uh what would sensibly be interpreted as protections for transgender people become divided uh weapons against them. What was meant to be tools against discrimination for black Americans become weapons against them. And we really are seeing the reversal of civil rights by this administration. And here, again, not through litigation, not through courts, through executive action. Real men don't use power to beat up on people weaker than them. Real men use power to lift up people and groups that are weaker than them, and that's how we know these aren't real men. But let me close this out by asking, Corey, what does this mean in practical terms for these transgender kids who are already already in such a tough spot in a that despises them for being who they are, where their the rates of mental illness and depression and suicide are so high, not because they're transgender, because of how society treats them. I mean, will protections be weakened immediately, or

is this going to play out slowly in the courts? I mean, I I think it's grim in the in the near future, because if you think about it, you know, some of the most vulnerable transgender people are students, and they're in schools where they there's an obligation of the school to protect them. Uh and that's what these past settlements were about, schools that were failing to do so being uh reprimanded by the Department of Justice and getting them to agree to uh respect transgender kids and to protect their safety is often what we're talking about. And here the administration coming in and undoing these agreements that are aimed at student safety uh really are putting children at risk. And that's why, as is true of so many of the things that we're talking about on this show, uh it is the evisceration of many of the gains in civil rights for transgender kids that we had before. And you know, schools are are where a lot of this happens. They're contained environments. We trust as parents that the schools are going to be protecting our kids, and I worry that the immediate

effect here is really putting people in danger. Well, Corey, I am grateful to you, as always, for talking me off a ledge on all these matters. And um I want to ask, Professor, what is the best way for our listeners to follow you and keep up with your brilliance the rest of the week? Well, I'm so grateful to the our amazing listeners. Uh we have just consistently we were top three last week in Apple Podcasts. Very nice. Uh and um we posted that. Uh and the reviews keep coming in, the five-star reviews and the comments uh on Apple or Spotify or wherever you get your podcast. There's also a YouTube channel, the Oath in the Office YouTube channel, and a Substack, the Oath in the Office Substack. So, find us uh on one of those places. Right on. Professor, thank you so much. I want to thank everyone um who puts the show together, Wendy and Beowulf. And of course, I want to thank all of our deeply attractive listeners.

Please subscribe. Please uh uh share. Please tell your friends. And uh thank you guys so much for taking this journey with us. I'm John Fugelsang, along with Professor Brett Schneyer, and we will see you next time on the Oath in the Office.